November 9, 2012

January 16, 2013 Employment Law Update Announced

Posted in Acknowledgment, Age, Arrest records, At-will Employment, Background Checking, Color, Conviction Records, Criminal History, Disability, Disclaimers, Discrimination, Employee Handbooks, Facebook, Fair Labor Standards Act, Family and Medical Leave Act, Gender / Sex, Harassment, Hiring and Recruiting, Interactive Process, Leaves of Absence, National Labor Relations Act, National Origin, Posting Requirements, Posting Requrements, Protected Concerted Activity, Race, Reasonable Accommodation, Religion, Retaliation, Sexual Harassment, Sick Leave, Social Media, Social Media in the Workplace, Workplace Posters tagged , , , , at 10:28 am by Tom Jacobson

Need continuing education credits?  Want to keep up to date on the latest developments in employment law?  If so, here’s an opportunity for you.

I’ll be moderating Lorman’s Employment Law Update in Fargo, North Dakota on January 16, 2013. The day-long event has been approved for 6.5 hours of HRCI and CLE credit, 1.0 hour of HRPD credit, and 8.0 hours of CPE credit.

In interested, please contact me at taj@alexandriamnlaw.com, or click here for more information or to register.

I hope to see you in Fargo on January 13!

P.S. Don’t forget to ask me about a discount on the registration fee!

November 2, 2012

NLRB’s Halloween at-will advice is not so scary

Posted in Acknowledgment, At-will Employment, Contracts, Disclaimers, Disclaimers, Employee Handbooks tagged , , , , , , at 10:28 am by Tom Jacobson

Wednesday was Halloween, and my neighborhood was crawling with trick-or-treaters. The scary part was not the kids or their costumes. Rather, it was the insomnia-inducing sugar rush I got after working quality control on the night shift.

Also on Wednesday, one scary trend in the world of employment law seems to have been averted. The trend was that in a couple of National Labor Relations Board (NLRB) cases, common at-will employment clauses were interpreted as violating the National Labor Relations Act. However, on Wednesday the NLRB’s Acting General Counsel, Lafe Solomon, issued an Advice Memo which analyzed two such clauses and reached the not-so-scary conclusion that they did not violate the Act.

In one case, a handbook which had been issued by Rocha Transportation of Modesto, CA included the following at-will clause:

No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will …. Only the president of the Company has the authority to make any such agreement and then only in writing.

In the other case, the handbook used by Mimi’s Café in Casa Grande, AZ said:

No representative of the Company has authority to enter into any agreement contrary to the foregoing “employment at will” relationship.

The scary part was that in other recent NLRB cases, similar clauses were interpreted as being unlawful waivers of employees’ rights to engage in collective bargaining under the NLRA. If that trend were to continue, the at-will clauses in countless employee handbooks across the country would be subject to challenge.

However, the NLRB’s Halloween Advice Memo allays those fears somewhat by concluding in the Rocha case that because the at-will clause explicitly states that the relationship can be changed, employees would not reasonably assume that their NLRA rights are prohibited. Similarly, regarding Mimi’s Cafe, the Advice Memo notes that the at-will clause was not unlawfully broad because it does not require employees to agree that the employment relationship cannot be changed, but merely stresses that the employer’s representatives are not authorized to alter it.

What you need to know:  At-will employment generally gives employees and employers alike the flexibility to end their relationship at any time, with or without notice, and for any lawful reason. Handbook clauses like the ones noted above are intended to help preserve that status. However, if they are not properly drafted, or if they are inconsistent with an employer’s other documentation, the clauses may be unlawful or may not actually preserve the at-will employment relationship. Therefore, to ensure compliance, employers should have their at-will employment documentation reviewed by legal counsel.  

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

July 18, 2012

Is your at-will employment policy at risk?

Posted in Acknowledgment, At-will Employment, Collective Bargaining, Contracts, Disclaimers, Disclaimers, Employee Handbooks, National Labor Relations Act, Protected Concerted Activity tagged , , , , , , , , at 10:39 am by Tom Jacobson

At-will employment is perceived as a sacred cow for most employers, but in a pair of recent cases the National Labor Relations Board (NLRB) has successfully challenged the at-will employment policies of two U.S. employers.

Generally speaking, at-will employment is the concept that employees are employed for no particular duration. This means that either the at-will employee or his/her employer may end their employment relationship at any time, with or without notice, and with or without cause. The vast majority of Minnesota employees are at-will employees. The polar opposite of at-will employment is employment subject to contractual terms, such as a union contract.

When improperly written, employee handbooks and similar written policies can be interpreted as contracts which, contrary to the at-will concept, give employees the right to continued employment, pre-termination disciplinary actions and/or other protections. Thus, to preserve the at-will relationship, astute employers include in their employee handbooks and other policy documentation language disclaiming any contractual relationship and confirming the at-will status.

These types of disclaimers were recently challenged by the NLRB in the cases of Hyatt Hotels Corporation and American Red Cross Arizona Blood Services Region. The Hyatt case involved an acknowledgment form which indicated that the employees’ at-will status could not be altered except by a written statement signed by the employee and specified company executives. Similarly, the American Red Cross case involved a disclaimer which stated that the employees’ at-will status could not be amended, modified or altered in any way.

The NLRB argued that these limitations on how the employees’ at-will status could be changed were unlawful interference with the employees’ rights to engage in protected concerted activity, such as collective bargaining. The Hyatt case was settled when Hyatt agreed, among other things, to discontinue using the challenged language in its acknowledgment form. The American Red Cross case resulted in the NLRB issuing an order compelling the employer to cease and desist from using the disputed language in its forms.

What you need to know: To preserve the at-will employment relationship, employee handbooks and related policy documentation must include appropriate disclaimers.  However, to reduce the risk of a legal challenge, those disclaimers must be carefully written so as to not interfere with employees’ rights under the National Labor Relations Act. Existing disclaimers should be reviewed by legal counsel for compliance in light of these recent NLRB cases. 

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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